Citation Nr: 1414789
Decision Date: 04/04/14 Archive Date: 04/11/14
DOCKET NO. 11-22 799 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Dworkin, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1969 to July 1971.
This matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
The Board recognizes that, while the Veteran originally filed a claim for service connection for PTSD, claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009).
In November 2013, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of that hearing is of record.
FINDINGS OF FACT
1. The reported stressor upon which the Veteran's diagnoses of PTSD is based, was the result of his own willful misconduct.
2. A psychiatric disability, to include PTSD, was not shown to have either began during or was otherwise caused by the Veteran's military service and not be due to willful misconduct.
CONCLUSION OF LAW
The criteria for service connection for a psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. § 105, 1110, 1154 (West 2002); 38 C.F.R. § 3.301, 3.303, 3.304 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009).
The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified by a February 2009 letter.
The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim).
Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication of the August 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).
The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, or available evidence. Therefore, the Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted identified, or remains outstanding, and the duty to assist requirement has been satisfied.
The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that a VA examination is not necessary to determine whether a major depressive disorder or PTSD are related to his period of active service, because the requirements for providing an examination are not met. VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Here, although the Veteran has presented competent medical evidence of a current diagnosis of major depressive disorder and PTSD, the record is absent of an in-service diagnosis or reports of symptoms of the Veteran's conditions within one year after separation. Furthermore, the record is absent of any legal or permissible in-service event to which major depressive disorder or PTSD could be attributed. Therefore, no medical opinion is warranted for this claim and the Board finds that no further action is necessary to meet the duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Service Connection
Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2013). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310 (2013). Service connection may also be established for certain chronic diseases manifested to a compensable degree within a presumptive period following separation from service. 38 C.F.R. §§ 3.307, 3.309 (2013). Psychoses are chronic diseases with a presumptive period of one year. 38 C.F.R. §§ 3.307, 3.309 (2013).
Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2013). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2013).
The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a Veteran engaged in combat with the enemy during service. Gaines v. West, 11 Vet. App. 353 (1998). If VA determines that a Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that testimony is found to be satisfactory, credible, and consistent with circumstances, conditions or hardships of service. 38 U.S.C.A. 1154(b) (West 2002); 38 C.F.R. 3.304(f)(1) (2013); Zarycki v. Brown, 6 Vet. App. 91 (1993).
However, if the alleged stressor is not combat-related, then the veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996).
Lay evidence may also establish an alleged stressor where: (1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; (2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor; (3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and (4) there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3) (2013).
Fear of hostile military or terrorist activity occurs where a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2013).
If a PTSD claim is based on in-service personal assault, evidence from sources other than the appellant's service records may corroborate her account of the stressor incident. Examples of that evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually-transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him the opportunity to furnish this type of evidence or advise the VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5) (2013).
The Veteran asserts that PTSD was incurred in or is due to his active service. VA treatment records show that beginning in November 2008 he sought treatment for PTSD. A December 2008 VA treatment note indicated that he showed a positive indication of PTSD. A February 2009 VA therapist treatment note, reported a provisional diagnoses of PTSD with a GAF of 50. Therefore, the Board will review this appeal as thought the Veteran has a current diagnosis of PTSD.
The Veteran has generally asserted that his PTSD is the result of an event that occurred while he was stationed in Korea. The Veteran contends that while stationed at Camp Casey Korea, he was used as bait by Army Criminal Investigation Command (CID) in an operation to incriminate the Korean mafia and other service members. In the Veteran's statement in support of claim for service connection for PTSD, he stated that during active service he was charged with the theft of ration cards and letters of authorization. During that incident, he claims that he was not a willing participate in the theft of ration cards but was instead an unwilling participant. He also stated that a Korean National threatened him at gun point and at another juncture fired a weapon at him while in the vicinity of Camp Casey.
The RO obtained from the United States Army Crime Records Center at Fort Belvoir, the Report of Investigation (ROI) spanning from January 1971 to February 1972, concerning the events that are central to the Veteran's claim. The ROI contains statements from Korean Nationals, investigation reports concerning the theft and sale of letters of recommendation, and investigative summaries of the Veteran's role in the illegal activities.
A February 1971 Statement by Accused or Suspected Person, indicated that the Veteran confessed to his participation in the theft and selling of ration cards and letters of authorization. The Veteran stated that he stole and sold the ration cards and letters of authorization to Korean Nationals in concert with other service members.
An April 1971 Summary of Court Martial Order shows that Veteran was found guilty of Article 86 and Article 121 of the Uniform Code of Military Justice. Those two articles addressed the Veteran as being absent without authority from his unit and for theft of letters of authorization and ration cards. The Veteran's sentence was to forfeit $90.00, perform hard labor without confinement for 45 days, and a reduction to the grade of Private E-2. His sentence was then converted to the forfeiture of $90.00 and the reduction of grade only.
The Board notes that there is no evidence of record in the ROI to substantiate the Veteran's assertions that he was used as bait to implicate other service members or the Korean mafia. Moreover, there is no evidence of record that sheds light on the Veteran's reports of being held at gun point by Korean Nationals or the incident in which he reported Korean Nationals entered Camp Casey and fired upon him.
While the medical professionals who have treated the Veteran have not specifically reported that PTSD was due to incidents surrounding the Veteran's illegal activities, those incidents are frequently discussed as the central cause of the Veteran's PTSD and major depressive disorder. Moreover, in the Veteran's claim and statements submitted in support of his claim, he has consistently asserted that being held at gun point and being fire up by Korean Nationals were the cause of his PTSD. He has also reported that incident to medically personnel as the cause of his PTSD.
However, while the basic three criteria for service connection for PTSD may have been met, VA regulations provide that direct service connection may only be granted when a disability was not the result of a Veteran's own willful misconduct. Therefore, the Board must consider whether the Veteran's reported stressor constitutes a willful misconduct action, which would preclude a grant of service connection for any disability caused by such a willful misconduct act.
Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1) (2013); Daniels v. Brown, 9 Vet. App. 348 (1996).
The Veteran has provided several accounts of his reported stressor, most recently during a November 2013 travel board hearing before the undersigned. The Veteran recounted the events of the theft of ration cards and letters of recommendation. The Veteran reported that after he sold the ration cards and letters of authorization to Korean Nationals, they later demanded their money back and reportedly held the Veteran gunpoint and fired a gun upon him while on base.
The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for PTSD because the Veteran's claimed stressor occurred during an act of willful misconduct involving theft. The evidence does not show that he has reported any non-willful misconduct stressors that could be the precursor for a diagnosis of any psychiatric disability.
It is clear from the Veteran's service personnel records that the Veteran committed a significant offense that required a court marshal and the eventual sentence to forfeit $90.00 and a reduction of rank to E2. Although the Veteran avoided incarceration, those are still significant penalties that convey the seriousness of the incident and of the Veteran's actions. Furthermore, that sentence represents a finding that the Veteran's activities constituted willful misconduct, and the Board agrees with that finding that the activities surrounding the theft and resale of United States Government property represented willful misconduct on the part of the Veteran. The Board finds that consequences of those actions, such as violence in conjunction with the transaction to sell the stolen merchandise, also constitutes willful misconduct.
Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1) (2013).
In this case, there is little doubt that the Veteran's conduct was a conscious decision, as he was charged with the theft of ration cards and letters of authorization. The Veteran has also admitted to those actions not only during the CID investigation in 1971, but also more recently during the November 2013 hearing.
If a claim is denied solely on the basis of willful misconduct, it must be established that the denial of the claim was justified by a preponderance of the evidence. 38 U.S.C.A. § 105(a) (2013); Smith v. Derwinski, 2 Vet. App. 241 (1992).
Here, the Summary Court-Marshall Order, CID investigation reports, and the Veteran's own statements leave little doubt as to the nature of the Veteran's action. He was convicted of a crime that was significant enough to require a fine and a loss of rank. This evidence is highly probative, and entitled to great weight. Therefore, the Board finds that the Veteran's actions of theft of ration cards and letters of authorization constitutes willful misconduct. His claimed stressors are incidents involved with the acts of willful misconduct because those claimed stressors occurred in conjunction with the transaction to sell the stolen property. Therefore, those incidents cannot service as basis for service connection for PTSD.
To the extent that the Veteran believes that his depression is a result of his military service, the service medical records do not show any reports of psychiatric complaints or treatments. The first documentation of the Veteran experiencing depression was in April 2001 when he was diagnosed with depression by VA personnel and assigned a GAF of 30. Moreover, during the November 2013 travel board hearing, he stated that he began experiencing PTSD symptoms around 2008.
The preponderance of the evidence is against the Veteran's claim of entitlement to service-connection for a major depressive disorder. The medical records and the Veteran's own statements concerning the onset of symptoms of major depressive disorder, show that he did not experience symptoms of that disability until 2001, some 30 years after separation from service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not experience any symptoms or complaints of the claimed condition for at least 30 years after service, a factor that weighs against the Veteran's claim.
Additionally, there is no competent medical evidence or opinion that the Veteran's depressive disorder is related to the Veteran's service that is not in relation to the Veteran's willful misconduct activities. Neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such opinion. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for major depressive disorder.
To the extent that any depression is related to the incidents in Korea, those events cannot serve as a basis of a claim for VA benefits as those incidents were the clear result of willful misconduct.
The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a psychiatric disability, to include major depressive disorder or PTSD. There is no reasonable doubt to be resolved in this case and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to service connection for a psychiatric disability, to include major depressive disorder and include posttraumatic stress disorder (PTSD), is denied.
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Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs